Omar Khadr.1

“That when a government violates a Canadian, any Canadian’s fundamental rights, and allows them to be tortured, there are consequences and we all must pay . . . the question is what the Government of Canada did or didn’t do and that as a deterrent, as taking responsibility, and that as actually avoiding what could have been a $40-million payout at the end of the day was why we made that decision [to pay Omar Khadr $10.5 million].”

PM Justin Trudeau, response at public meeting, January 9, 2018

Introduction

In early July 2017, the Government of Canada announced a settlement payment of $10.5 million and apology to accused murderer and terrorist Omar Khadr. In Parliament, the Prime Minister defended the payment and apology on the basis “that a Canadian government violated a Canadian’s fundamental rights.”

Many Canadians wondered what rights of Khadr were violated that would warrant a $10.5 (or $40) million pay day.

There are actually several Khadr judicial decisions from the Supreme Court of Canada. This article describes the first decision where the question was a threshold one: whether Khadr actually enjoyed rights under the Charter of Rights and Freedoms. The next article will refer to the follow-up judicial decision.

Facts

The specific international obligation in issue here was the 1949 Geneva Convention. It allows prisoners to challenge their detention (habeas corpus). Prisoners at Guantanamo Bay were not permitted to do this, which corrupted the entire process.

The whole Khadr story is long and detailed. Only the basic context is necessary here. Canadian-born Khadr was accused of killing an American soldier in Afghanistan. He was captured and imprisoned at Guantanamo Bay by the United States in July 2002. The next year, Canadian intelligence officials interviewed Khadr in custody about the charges and shared the information with the Americans. In themselves, the interviews and sharing probably amounted to nothing.

After Khadr was formally charged by the Americans in late 2005, he asked the Canadian government for its videotape and other records of these interviews. The principle is called disclosure and is based on the 1991 case called Stinchcombe, which has been recently discussed in this LawNowcolumn. Canada refused to give Khadr disclosure. This was not disclosure of evidence that could catch Khadr by surprise or complicate (or assist) his defence. It was a request for the physical record of evidence of which he was well aware.

Unusual Case

Now, this was a highly atypical case. Khadr’s connection to Canada was tenuous. He and his family had spent much time outside of Canada. He was a child fighting against the American coalition. He had killed an American which he admitted to, and then later denied. He was in American custody in sovereign foreign territory, charged with serious American crimes and he was being processed by American authorities. His loyalties to Canada were unknown. Canada had obligations under international law to co-operate with international coalition partners in terrorism investigations.

The Stinchcombe duty of disclosure applied to prosecutions under Canadian law. No one knew how it could apply in a case such as this one. Khadr had been present at the interviews so it could not be said that he did not know what he was asked and answered. Still, he was young at the time. A record of what he told the Canadian interviewers was hardly thought to be the most critically precious evidence with which to defend himself against the American crimes. Indeed, the unusual disclosure request to receive the record of his own questioning might be considered a technical ploy.

The reach of the Charter of Rights was not clearly established in Canadian law at this point. Normally, one had to be on Canadian territory to assert Charter rights, and Canadian authorities operating outside of Canada were thought not to be bound by the Charter. In the 2007 case of Hape, the Supreme Court of Canada held that Canadian agents investigating money laundering in the Carribean were not bound by the Charter. This was consistent with both the American position and international law that prevents countries from enforcing their domestic laws extraterritorially. Another principle of “comity” calls on Canadian officials to follow the laws and procedures of the foreign country in which they are operating.

The trial judge agreed with the Crown that disclosure was not required in this case.

The Supreme Court of Canada Decision

In an uncharacteristically terse decision, the Supreme Court concluded that Khadr was entitled to Charter protection, and his right to “life, liberty and security of the person” was denied because he had not received videos and transcripts of his interrogations by Canadian officials. There was no analysis how the failure to disclose had any impact on Khadr’s liberty.

There are actually several Khadr judicial decisions from the Supreme Court of Canada. The Court said this case was an exception to Hape because, well, Canada should have known better than to trust the Americans at Guantanamo Bay. Canada should have known that the Americans were acting “contrary to Canada’s international obligations”, which preserve a higher, more noble platform “of international law and fundamental human rights” [para 18].

The specific international obligation in issue here was the 1949 Geneva Convention. It allows prisoners to challenge their detention (habeas corpus). Prisoners at Guantanamo Bay were not permitted to do this, which corrupted the entire process.

To put it another way, “if Canada was participating in a process that was violative of Canada’s binding obligations under international law, the Charter applies to the extent of that participation” [para 19]. When Canada passed the transcripts and video footage to the US, it violated its international human rights obligations. As a consequence, the Charter applied to protect Khadr and he had been improperly denied this nominal disclosure under his section 7 right to liberty.

If Canada had not interviewed Khadr in the first place, there would have been no records to disclose, no participation in an international law-flawed process, no application of the Charter of Rights to Khadr, and no Charter breach in his case.

Conclusion

Many Canadians wondered what rights of Khadr were violated that would warrant a $10.5 (or $40) million pay day.

As it did in 2001 when it refused the extradition of Canadians accused of multiple murders on American soil unless Canadian and international sensibilities against the death penalty were first indulged, the Supreme Court of Canada has claimed moral superiority. It has again whacked American law and its legal system under American territorial jurisdiction.

The case for Stinchcombe disclosure of the interview records to Khadr here is arguably feeble in several ways. The consequences of this nominal breach would ordinarily be in the order of negligible to nominal to minimal. It is not a loss of anything in the order of $10.5 million.

The door, however, was thrown open by the Supreme Court of Canada. From Ottawa, Khadr was granted Charter protection to his cell in Guantanamo Bay.

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